Answer of the Justices to the Senate

Massachusetts Supreme Judicial Court1935-05-01

290 Mass. 601

Summary · law.co

Holding. The Justices declined to answer the Senate's request for an advisory opinion, holding that the constitutional requirement for advisory opinions applies only when a legislative body facing a pending matter of serious urgency needs guidance to exercise its powers, and that under general constitutional principles, the Justices are not required to provide an opinion to a successor legislative body in response to a request made by a predecessor body.

The Massachusetts Supreme Judicial Court was asked by the Senate in June 1934 to provide an advisory opinion on a legal question. However, the request was not transmitted to the Justices until after the legislative session had ended and the Senate that made the request had ceased to exist. By the time the Justices received the order in early 1935, a new Senate had taken office, and the circumstances that prompted the original inquiry no longer existed.

The Justices explained that their constitutional authority to render advisory opinions is limited to situations involving "important questions of law" and "solemn occasions," meaning instances where a legislative body facing a serious and unusual matter needs legal guidance to exercise its powers. Since the requesting Senate no longer existed and could not act on the opinion, and the original urgency had passed, the Justices determined they had no obligation to answer. The Court established that it will not generally provide advisory opinions to a successor legislative body based on a request from its predecessor, absent extraordinary circumstances.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Scope of judicial authority to issue advisory opinions under state constitution
Meaning of 'important questions of law' and 'solemn occasions' in advisory opinion provision
Whether advisory opinions may be rendered to successor legislative bodies for requests made by predecessors
Requirement that opinion requests relate to pending legislative matters

Procedural posture

The Massachusetts Senate adopted an order on June 27, 1934, requesting an advisory opinion from the Justices of the Supreme Judicial Court; the order was transmitted on July 2, 1934, after the legislative session had ended, and the Justices responded on March 27, 1935.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The order was transmitted to the Justices on July 2,1934, and on March 27, 1935, they returned the following answer:

To The Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully make answer to the question set forth in an order, adopted on June 27, 1934, and transmitted on July 2, 1934, after the prorogation of the General Court on June 30, 1934. Since the ratification and adoption of art. 64 of the Amendments to the Constitution, the official life of the Senate by which the order was adopted came to an end on the first Wednesday of January, 1935. In the ordinary course of events the Senate of 1933-34 would not reassemble after its prorogation on June 30, 1934. It was not in fact called together again. Its legislative functions were not exercised after that date. Opinion of the Justices, 239 Mass. 603. The Constitution provides that the opinion of the Justices may be required “upon important questions of law, and upon solemn occasions.” c. 3, art. 2. These words mean that the opinions can be required only when “such questions of law are necessary to be determined by the body making the inquiry, in the exercise of the legislative or executive power entrusted to it by the Constitution and laws of the Commonwealth.” Opinion of the Justices, 126 Mass. 557, 566. “By a solemn occasion, the Constitution means some serious and unusual exigency. It has been held to be such an exigency when . . . either branch of the Legislature, having some action in view, has serious doubts as to their power and authority to take such action, under the Constitution, or under existing statutes.” Answer of the Justices, 148 Mass. 623, 625, 626. It is clear that the Senate which passed the order, having gone out of existence without having been in session after the order was transmitted to the Justices, cannot exercise any legislative power respecting the inquiry.

There are instances where the Justices have returned opinions to the successor of the legislative body by which the order requesting the opinion was passed. Those instances, however, have usually been accompanied by some special circumstance respecting expectation and reason for answer. Opinion of the Justices, 126 Mass. 557; 7 Pick. 125, note; 9 Cush. 604; 289 Mass. 607. In those instances whether an opinion ought to be rendered because not relating to a pending matter appears not to have been considered or discussed. In Opinion of the Justices, 250 Mass. 591, 604, it was said that “The question whether an opinion can be required by one branch of the General Court for the use of its successor has not been considered. That question is left open and the answer now made is not to be taken as an expression of opinion on it.”

It has been frequently pointed out that the Justices ought not to give opinions under this provision of the Constitution unless required to do so by its terms. Opinion of the Justices, 261 Mass. 556, 612, 613. Answer of the Justices, 214 Mass. 602; 217 Mass. 607. Opinion of the Justices, 269 Mass. 611, 618. It was said in Opinion of the Justices, 186 Mass. 603, 608, that the Justices “are always reluctant to give opinions upon legal questions of grave importance without the aid of arguments of counsel. It is our duty to do this when required under c. 3, art. 2 of the Constitution, but only so far as our opinion is desired as an aid in the performance of official duties in regard to a matter then pending.” It has sometimes happened “that opinions have been required when the nature of the questions or the importance of the occasion has not been such as to justify the Justices in exercising the power conferred upon them by the clause of the Constitution under which the questions were put.” Opinion of the Justices, 208 Mass. 614, 615. Answer of the Justices, 122 Mass. 600; 150 Mass. 598; 211 Mass. 630. Opinion of the Justices, 190 Mass. 611, 612. There is always present the desire on the part of the Justices to comply with the request for an opinion under this clause of the Constitution out of respect to the wishes of a co-ordinate department of government, but the duty of conformity to the meaning of this clause is a continuing one and cannot be avoided.

The question put in the order of June 27, 1934, could not be answered to the Honorable Senate by which it was adopted because not transmitted to us until after the General Court had been prorogued. There is now no necessity, opportunity or power for consideration by that legislative body of the subject referred to in the order. The “solemn occasion” which gave rise to the order has ceased to exist. We think that in general the Constitution does not require the Justices to give an opinion to a succeeding legislative body in reply to a request propounded by a preceding legislative body. Whether some public emergency may require an exception to this principle need not now be considered. The present order plainly does not relate to a matter of that nature. It falls outside the terms of the Constitution. It does not concern the performance of legislative duties touching a pending matter. We are constrained to decline to answer the. question embodied in the order. This communication is respectfully addressed to the Honorable Senate whose members were elected in November, 1934, and whose terms of office began with the first Wednesday of January, 1935.

Abthub P. Rugg.

John C. Cbosby.

Edwabd P. Piebce.

Feed T. Field.

Chables H. Donahue.

Henby T. Lummus.

Stanley E. Qua.